NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN A. FLYNN, No. 18-73009
Petitioner, MSPB No. SF-1221-18-0406-W-1
v.
MEMORANDUM*
UNITED STATES DEPARTMENT OF
THE ARMY,
Respondent.
On Petition for Review of an Order of the
Merit Systems Protection Board
Submitted April 7, 2020**
Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
Dr. Kathryn A. Flynn petitions pro se for review of the Merit Systems
Protection Board’s (“MSPB”) final order in her administrative action against the
Department of the Army (“the agency”) alleging violations of the Whistleblower
Protection Enhancement Act of 2012, 5 U.S.C. § 2302(b)(8), arising out of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
agency’s disciplinary decisions and ultimate failure to renew her employment. We
have jurisdiction under 5 U.S.C. § 7703(b)(1)(B). We review de novo questions of
the MSPB’s jurisdiction, Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1054 (9th
Cir. 2016), and we affirm.
The MSPB properly dismissed for lack of jurisdiction Flynn’s claims related
to her filing an Equal Employment Opportunity Commission (“EEOC”) complaint
and reporting sexual harassment because such complaints fall within the province
of the EEOC. See Daniels, 832 F.3d at 1051 (explaining that the MSPB
jurisdiction is limited to whistleblower disclosures) (citing 5 U.S.C. § 1221(a)); see
also Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 692 n.17 (Fed. Cir. 1992) (noting
that “the EEOC framework specifically provides for employees who suffer reprisal
for the filing of [an] EEOC complaint”).
The MSPB properly dismissed for lack of jurisdiction Flynn’s claims related
to the agency’s alleged lack of transparency because Flynn failed to allege non-
frivolous allegations of protected whistleblower activity under Section 2302(b)(8)
of the Whistleblower Protection Act (“WPA”). See 5 C.F.R.
§ 1201.4(s) (for purposes of MSPB jurisdiction, a non-frivolous allegation is “more
than conclusory,” “plausible on its face,” and “material to the legal issues in the
appeal”); see also 5 U.S.C. § 2302(b)(8)(A) (under the WPA, an employee must
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“reasonably believe[]” that the disclosure relates to an activity prohibited under the
statute); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 890 (9th Cir.
2004) (to determine whether a disclosure relates to a prohibited activity under the
WPA, courts examine whether a “‘disinterested observer with knowledge of the
essential facts . . . reasonably [would] conclude that a disclosure” evidences
activity prohibited under the statute (quoting Lachance v. White, 174 F.3d 1378,
1381 (Fed. Cir. 1999))).
The MSPB properly dismissed Dr. Flynn’s remaining claims related to the
agency’s mismanagement and abuse of government contracts as barred under the
doctrine of res judicata because Flynn could have raised these claims in her prior
MSPB complaint, MSPB No. SF-1221-14-0620-W-1, which was adjudicated in a
final decision on the merits. See Bldg. Materials & Constr. Teamsters Local No.
216 v. Granite Rock Co., 851 F.2d 1190, 1195 (9th Cir. 1988) (res judicata bars
relitigation of an administrative determination by a federal agency “when the
agency’s determinations have been made in a proceeding complying with
standards of due process and when the findings are supported by substantial
evidence in the administrative record” (citation and internal quotation marks
omitted)); see also Carson v. Dep’t of Energy, 398 F.3d 1369, 1375-76 (Fed. Cir.
2005) (concluding that employee’s MSPB petition was barred by a prior MSPB
petition under the doctrine of res judicata).
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The MSPB did not abuse its discretion by denying Flynn’s motion to compel
discovery. See Duggan v. Dep’t of Defense, 883 F.3d 842, 847-48 (9th Cir. 2018)
(setting forth standard of review for denial of discovery requests in administrative
proceedings); see also Langer v. Dep’t of Treasury, 265 F.3d 1259, 1265 (Fed. Cir.
2001) (explaining that “the admissibility of evidence is within the sound discretion
of the [MSPB]”).
We reject as unsupported by the record Flynn’s contention that the MSPB
did not properly conduct a de novo review of her petition and erroneously relied on
the Office of Special Counsel’s determination in her prior petition.
AFFIRMED.
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